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Searching for Articles published in November 2013.
Found 13 Results.

Being At Work Is An Essential Job Function

A colleague wrote recently that the Court of Appeals for the Eighth Circuit ruled that when determining whether an employee is disabled or not because the employee cannot perform the essential functions of the job, the key document to be considered by the Court is the job description prepared by an employer to describe the essential functions of a position rather than the actual duties being performed by the employee. This decision places great importance on the job descriptions prepared by an employer. A recent decision from the District Court in the Fifth Circuit held that attendance at work could be considered an essential function of a position. If that occurs, an employee who could not meet the employer attendance requirements would not be considered a "qualified employee" under the Americans With Disabilities Act and would not qualify for protection such as a reasonable accommodation. While this is an initial stage of the Court rulings, it too highlights the importance of having accurate job descriptions and comprehensive job descriptions that identify the expectation of attendance at work as a requirement of the job. Many employers have not invested the time to update job descriptions. This may result in a loss of an opportunity to clearly identify the job expectations for a position and insure that all employees must be able to perform the essential duties of the job in order to be considered a protected employee that may be eligible for reasonable accommodations if suffering a disabling condition. Employers should also be careful to clearly indicate the attendance expectations for a position in order to be able to argue the attendance requirement as being an essential function of the position held by the employee. Often, the best way to review a job description is to ask the supervisor to review the description of all the positions that the supervisor is involved in actually supervising. It is important to have common language in all job descriptions, but it is also important to have specific descriptions that clearly identify the duties of the position. These recent Federal Court cases show the importance of an accurate job description.

Caution - Duty To Accommodate May Be Expanded

A recent decision from the 5th Circuit Court of Appeals has opened the door to consideration of a duty to accommodate under the Americans With Disabilities Act that goes beyond the need to accommodate an employee with assistance to perform the essential functions of the employee's job. In this decision, the 5th Circuit Court of Appeals held that summary judgment should not be granted to the employer but rather the trial court should determine whether the providing of free on-site parking to an employee that suffered from a knee problem was a reasonable accommodation. The point of this decision was that the ADA is not limited to providing accommodations to allow an employee to perform the regular duties of their position but rather could be read to require an employer to provide accommodations even if the accommodation does not directly help the employee perform their regular work duties. This is an expansion of how to consider what is a reasonable accommodation for an employee suffering from a disabling condition. While there are not more cases that follow this line of thinking, there is great concern that more circuits will see an opportunity to expand the duty to accommodate into various aspects of the work environment and not limit that duty to just addressing accommodations that will assist an employee to do their job successfully. This could open the door to significant expansion of requests for accommodations that would make life easier for an employee. It's not far-fetched to imagine requests to work from home on a regular basis because that will help an employee be successful and enjoy life. Employers must be very cautious when considering an accommodation requested by an employee. Employers should not move quickly to grant an accommodation even if it is a simple request without considering whether this will impact other requests in the future. Take the time to think this through before giving an accommodation to an employee even though the case law appears to be expanding the duty to accommodate.

Local Government Seminar - Fall 2011

Posted on November 13, 2013, Authored by ,

Great Dane Pub & Brewing Company, Wausau, WI Collective Bargaining in the Public Sector Peter Davis, Esq., WERC Peter Davis, Legal Counsel for the Wisconsin Employment Relations Commission (WERC), presented information regarding the status of collective bargaining in the public sector in light of the changes in Wisconsin Act 10 and the Budget Bill. The WERC issued a series of rules regarding collective bargaining and union elections, Peter Davis provided background information and an update regarding the actions taken by the WERC. The IRS is Your Friend: Local Government Issues with the Internal Revenue Service Attorney Mary Ellen Schill The Internal Revenue Service office of Federal, State & Local Governments (FSLG) has developed a self-assessment tool as a resource to help governmental entities understand and comply with the complex nature of their federal tax responsibilities. This presentation addressed common errors made by governmental employers and explore how municipalities can use the self-assessment tool for their benefit. Handling Grievances Under the Statutory Grievance Process Attorneys Dean R. Dietrich and Kevin J.T. Terry Local governments are now required to provide a grievance procedure for all employees. This presentation will address the requirements of the Grievance Procedure required be in place by October 1, 2011, and provide recommendations on the procedures used by local governments in the processing of grievances that may arise. Specific information will be given about the types of grievances to be considered by the local government unit and the procedures to be followed.

Local Government Seminar - Spring 2012

Posted on November 13, 2013, Authored by ,

Great Dane Pub & Brewing Company, Wausau, WI Presentation on Federal Financing Programs Brian Deaner, Community Programs Director with USDA Rural Development, and Attorney Steve Lipowski This presentation will discuss various financing alternatives available to local governments for projects that may address the needs of the local community. Representatives from the USDA Rural Development Program will give insights regarding available funds and options for local government units.   Managing Municipal Employees in a Nonunion Environment (panel discussion) Attorney Dean Dietrich, Jeannie Worden, Vice President of Human Resources for Northcentral Technical College Frank Matel, Marathon County Human Resources Director This panel discussion will cover various topics involving the management of municipal employees in a nonunion environment. Topics will include use of seniority in making employment decisions, improving performance evaluation processes and strategies for finding the best employee. Employment Policies That May Put You at Risk of Violating the Law Attorneys Dean Dietrich and Kevin Terry The presentation will discuss recent decisions that have created potential pitfalls for employers in developing and implementing employment policies and practices. The discussion will cover what items should best be included in a human resources handbook for public employees.

Flu Shots - Required or Prohibited

Many states have adopted laws that require mandatory influenza (flu) vaccinations for certain health care professions. A recent hearing on Wisconsin Assembly Bill 247 would take the opposite direction. This proposed legislation would prohibit employers (including health care employers) from taking adverse employment action against an employee who refuses to receive a seasonal flu vaccination. The bill would also prohibit Wisconsin employers from refusing to hire or refusing to renew the contract of someone because of their status of receiving or not receiving a seasonal flu vaccination. In addition, an employer would not be allowed to require an employee or contractor to receive a flu shot if the individual refuses to accept it. An employer also could not require unvaccinated employees or contractors to wear masks as an alternative to not taking a flu shot. In other words, this legislation would prohibit an employer from taking any action that would adversely affect the employment of an individual employee or a contractor that refuses to take a seasonal flu vaccination. Employers, under this proposed legislation, would be required to inform employees in writing that they may refuse a flu vaccination without suffering discrimination or retaliation from the employer. Employers would also be required to offer employees or contractors written information discussing the risks and benefits of receiving the flu vaccination prior to its being administered by the company. If employers are requesting that their employees or contracted persons receive a flu shot, the employer will be required to arrange for the vaccination at no cost to the person receiving it. This proposed legislation has received a number of criticisms especially from state agencies that believe that a vaccination should be given to those employees in jobs that routinely expose themselves to the flu virus. Many employers have implemented a mandatory vaccination program for those types of positions. The proposed legislation would prevent mandatory vaccination requirements and prevent any discrimination or retaliation against an employee that chooses to not have a seasonal flu vaccination. The proposers of the legislation side with the argument of personal freedom to choose an individuals health care rather than a requirement that the employer can impose upon certain employees that they must receive the vaccination. The Wisconsin Senate will not be in session until after the first of the year, so it is unlikely that this legislation will move anywhere quickly but it is an indication of the controversy that exists when talking about mandatory health care requirements.

Halloween Trick, or Treat? IRS Issues 2014 Limits for Qualified Plans

Posted on November 1, 2013, Authored by Mary Ellen Schill
Mary Ellen Schill
Attorney
Wausau Office
, Filed under Employment

On October 31 the IRS announced the various contribution and benefit limits applicable to qualified retirement plans, for 2014. Here's a link to our recent update which includes a handy chart. We've become accustomed to getting these annual announcements in mid-October, but as with a lot of other IRS guidance, the government shutdown did have an effect. The IRS limits announced yesterday are annually adjusted for cost-of-living increases (and decreases if necessary). How often and how much of an increase is implemented depends on the particular section of the tax code which is implicated. For example, the IRS limit on elective deferrals (employee pre-tax contributions) to a 401(k) plan can only be changed per the statute in $500 increments, and if the cost of living change doesn't warrant a full $500 adjustment, then there is no change. This was the case for 2014, so, the elective deferral limit for 2014 is the same as for 2013, $17,500. The Social Security Administration also announced this week the taxable wage base for 2014. The new taxable wage base will be $117,000. The taxable wage base is the amount of earnings which are subject to FICA taxes for the year. Payroll departments should be advised of the new limits, and 2014 personnel budgets will also need to be reviewed due to the new limit on FICA wages, and the higher limits on contributions to qualified plans.

Is it Only a Matter of Time Before LGBT Individuals Have Federal Employment Protection??

Posted on November 12, 2013, Authored by Sara J. Ackermann
Sara J. Ackermann
Attorney
Wausau Office
, Filed under Employment

Remember Jack Tripper? Pretending to be gay to stay in the coveted apartment with Chrissy and Janet? Oh, the ruse Jack played for years with multiple landlords who never quite caught on to Jack's true identity. In the employment setting, the opposite is true. Employees are more likely to hide their gay/lesbian/bisexual/transgender identity and pretend to be straight so as not to suffer discrimination in the workplace. While several states, including Wisconsin, protect these individuals from employment discrimination, there is currently no federal legal protection. This, however, could change. On November 7, the U.S. Senate passed Senate Bill 815, also known as the Employment Non-Discrimination Act (ENDA), which would ban employers from discriminating in the workplace based on sexual orientation and gender identity. Will this legislation, first proposed nearly twenty years ago, get through the House of Representatives? For employers with employees in states that currently offer no legal protection for LGBT individuals in the workplace, this is one to watch.

Ruder Ware Welcomes Attorney Emilu Starck

Posted on November 8, 2013, Authored by ,

Ruder Ware is pleased to announce the addition of Emilu Starck to our Wausau attorney team. A magna cum laude graduate of the University of St. Thomas Law School, Emilu advises clients on a wide variety of business transactional matters, including the organization of business entities; financing, sale and acquisition transactions; and related matters. Her expertise also allows her to assist clients in the field of health care.

Annual CWSHRM Human Resources & Labor Law Conference - 2012

Posted on November 13, 2013, Authored by ,

Stoney Creek Inn, Rothschild, WI Seminar Sponsors: Ruder Ware and Central Wisconsin Society for Human Resource Management The New Normal - Secret HR Strategies to Thrive in a Strange Economy Keynote Speaker Karl Ahlrichs - Gregory & Appel, Indianapolis, IN Do You Know it When You See it? Do's and Don'ts for Conducting Effective Harassment Investigations Attorney Sara Ackermann When does an investigation need to be conducted? Who should be interviewed? What kind of notes should be taken? What kind of documentation should be created? What information should be shared with the alleged victim? In this breakout session, these questions and more will be answered. Tips on how to conduct an effective harassment investigation will also be provided. Age Discrimination - Minimizing Risk of Claims Attorney Dean Dietrich As Human Resource leaders today, we are faced with very few options. Increased competition, cost reductions, lack of talent and narrowed margins... what's left? How can you thrive in today's ever changing and demanding marketplace while setting your organization apart from the competition as the brand of choice? This high energy, interactive presentation focuses on the revolutionary, breakthrough methodology of Experience-Based Design (EBD). Learn how to design your experience - keeping your customer and employee relationships captivated, hooked and emotionally connected. The Last Business Frontier Steve Tyink, Vice President of Business Innovation for Miron Construction

Final Regulations on the 3.8% Net Investment Tax

Posted on November 26, 2013, Authored by Amy E. Ebeling
Amy E. Ebeling
Attorney
Wausau Office
, Filed under Tax Deductions

The IRS issued final regulations on the 3.8% Net Investment Income Tax on November 26, 2013. The 3.8% Net Investment Income Tax was enacted as part of the Health Care and Education Reconciliation Act of 2010 and the Patient Protection and Affordable Care Act. The Net Investment Tax affects individuals, estates and trusts, beginning January 1, 2013. Please watch Tax Deductions for more information as we analyze these final regulations from the IRS (just in time for the holiday season)!

2014 Qualified Plan Cost of Living Increases, 2014 Social Security Taxable Wage Base

Posted on November 1, 2013, Authored by Mary Ellen Schill
Mary Ellen Schill
Attorney
Wausau Office
,

The Internal Revenue Service has announced the cost-of-living adjustments for the various qualified retirement plan limits. Many of the limits shown below are unchanged from last year. All of the above are plan year limits (i.e., for the plan year which begins in 2014), with the exception of the Code Section 401(k) and Code Section 403(b) elective deferral limit, which is a calendar year limitation. In addition, the Department of Health and Human Services has set the maximum taxable wages for the OASDI portion of the social security tax at $117,000 for 2014. If you have questions regarding the above, please contact Mary Ellen Schill, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

Annual Employment, Benefits & Labor Relations Law Conference - 2013

Posted on November 6, 2013, Authored by ,

Westwood Conference Center, Wausau, WI Impact of U.S. v. Windsor and IRS Recognition of Same Sex Marriages on Wisconsin Employers. Attorney Mary Ellen Schill Wisconsin does not recognize (and in fact criminalizes) same sex marriage. The United States Supreme Court in U.S. v. Windsor held that a portion of the federal Defense of Marriage Act was unconstitutional, but left stand the part of DOMA that says that states can refuse to recognize same sex marriages. The Internal Revenue Service now says that it will recognize same sex marriage for federal tax purposes, even if the taxpayer lives in a state that does not recognize same sex marriages. What does this all mean for Wisconsin employers and their employee benefit plans? This presentation will help you sort it all out. Benefits, Perquisites, Perks, Gifts and Rewards - The IRS Doesn't Care What You Call It Attorney Amy Ebeling Are there doughnuts in the break room? Who bought lunch? Do employees receive holiday gifts? Are there rewards for meeting performance goals? Call it what you want, but any cash or property that an employee receives from an employer in lieu of or in addition to regular wages is a fringe benefit that may be subject to taxation. Attend this seminar to learn tips and tricks to determining tax treatment of fringe benefits, potential employer liability, and hot topic trends in fringe benefit taxation. What is Attorney-Client Privilege and Why Should I Care? Attorney Sara Ackermann Every day HR professionals draft e-mails, memos, disciplinary notices, termination letters, and countless other documents that could someday be "Exhibit A" in a discrimination law suit. Sara Ackermann will address the "do's" and "don'ts" of effectively and efficiently using legal counsel to minimize risk within your HR budget. Sara will cover the "how, when, and why" of using legal counsel in several areas, including, document drafting, conducting audits, and performing investigations. E-mail your best lawyer joke to Sara prior to her presentation - the attendee with the funniest submission will win a prize! Independent Contractor Status: Who is Your Employee and Who is Not? Attorney Kevin Terry In a difficult economy, government agencies dealing with deficits are going to increasingly focus on misclassification audits as a potential revenue source. This presentation will highlight the determinative factors looked at by administrative bodies when deciding if a party is an employee or an independent contractor. The NLRB Has Been Given New Life: What Does That Mean for Union and Non-union Employers? Attorney Dean Dietrich This presentation will address the activism being displayed by the National Labor Relations Board for both union and non-union employers. Recent presidential appointments have created a fully-staffed National Labor Relations Board that has an anticipated agenda of pro-employee and pro-union activities. Employers will learn how to avoid a union election including a "quickie" election or a "mini-union" election. Employers will also learn how to modify their personnel policies to address the recent decisions and legal guidance provided by the NLRB. Employees Gone Wild: How to Protect Your Company From Hidden Risks. Ruder Ware Alumni Attorney In this hour-long session, we will provide helpful insight into several of the most-common HR headaches involving out-of-control or unusual employee conduct, including employee requests for accommodation of non-traditional religious practices/ observances, rogue employees who are out to steal the company's business, employees who are arrested or convicted, contractors who believe they are employees, employees who like to party a bit too much, workplace bullies and employees who like to broadcast their workplace grievances through social media. This presentation will educate attendees through reference to "real life" examples and easy-to-remember memory devices.

Recertification Elections to Begin Again - Hopefully

Posted on November 25, 2013, Authored by ,

The Wisconsin Supreme Court has struck down the sanction order issued by Judge Colas against the two WERC Commissioners. The end result is the proposed rescheduling of union recertification elections for school district employees to start on or about December 1, 2013. It appears that the WERC will proceed with recertification elections for those school district bargaining units that applied for recertification. As you may know, these elections are conducted by telephone and the school district is obligated to provide certain information to the WERC such as phone numbers and the last four digits of the social security number for each employee that is subject to a recertification election. School districts should proceed with complying with that requirement if they have not done so. There still remains an outstanding question whether those school district employee organizations that did not file for a recertification election are no longer representing the school district employees they used. School districts should take the position that a failure to properly file for a recertification election means the employees are no longer represented by the teacher association or the support staff organization. There may still be legal challenges to this position; however, there appears to be a sound basis for declaring that these employees are no longer considered represented by the applicable association. We anticipate the Supreme Court will rule on the merits of the constitutionality of Act 10 in late January or early February. Ruder Ware will keep you advised regarding developments and will host a seminar to explain the decision as soon as it is announced. If you have questions regarding the above, please contact Dean R. Dietrich, the author of this article, or any of the attorneys on the Local Governments Focus Team, or the School Districts Focus Team of Ruder Ware.